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From the Colorado Bar Association - Department of Legislative Relations
Michael Valdez
Keeping you apprised of what the General Assembly and your state Bar Association are up to under the Gold Dome.
Follow the Colorado Legislature on their website: http://www.leg.state.co.us/
LPC Activity. The LPC did not meet on Friday, March 7.
AT THE CAPITOL:
In the Senate.
On Monday, March 3, the Senate gave final approval to SB 164 - Concerning the alignment of the limitation on damages for noneconomic loss or injury in actions brought pursuant to the "Health Care Availability Act" with the limitation on damages for noneconomic loss or injury in general civil actions. The bill amends the definition of "direct noneconomic loss or injury" in actions brought under the "Health Care Availability Act" to exclude physical impairment or disfigurement. The bill moves to the House where the Judiciary Committee is expected to hear testimony on Wednesday, March 12 at 1:30 p.m.
HB 1119 - Concerning including reduction of disparities within the criminal justice system as an area of study review for the Colorado commission on criminal and juvenile justice was given final approval by the Senate on Tuesday, March 4. This bill has the support of the CBA through the Civil Rights Committee. The bill requires the Commission on Criminal and Juvenile Justice to study the reduction of racial and ethnic disparities within the criminal and juvenile justice systems.
On Thursday, the Senate Finance Committee heard testimony then delayed a vote on HB 1173 - Uniform Prudent Management of Institutional Funds (UPMIFA) Act. This uniform bill was amended in the House to include non-uniform provisions with regard to hospitals that have raised more than a few eyebrows. The CBA LPC voted to support the uniform version of the act but has not taken a position on the “hospital” provisions.
Also on Thursday, the Senate Health and Human Services Committee voted to defeat SB 162 - Interest from fiduciary accounts to support affordable housing. The bill required closing and settlement services provider to be responsible for the trust money, as early in the transaction as practicable, to give notice to all parties to the transaction that the trust money, absent direction from the parties, will be placed in a fiduciary account that may generate interest and that such interest, if any, will be donated to the fiduciary earnings for affordable housing foundation.
In the House.
Gaining final approval by the House on Tuesday, March 4, HB 1259 - Concerning increased accountability requirements for special districts the amended bill now moves to the Senate. The final version passed by the House represents considerable negotiations between the sponsor and representatives from the Special Districts Association.
After weeks of attempts to fashion an acceptable compromise and failing to do so, the sponsor of the HB 1011 - Sex abuse of child civil actions asked the Judiciary Committee to adopt the bill as introduced. The bill would have overhauled the civil sexual assault statute by creating an unlimited statute of limitations for civil actions based on damages arising from a sexual assault on a child. The sponsor of the bill tried in vain to fashion a compromise that the Judiciary Committee would accept but in the end was unable to do so.
On Friday, March 7, the House gave final approval to HB 1109 - Concerning an increase in the secretary of state's authority over charitable solicitations on a vote of 62 yes and 2 no and one excused from the Chamber.
Also on Friday, March 7, the House approved - on 2nd Reading - HB 1208 - Concerning juveniles against whom charges are directly filed in a district court. This bill would revamp the process for direct file by taking back discretion given to District Attorneys to determine when the direct filing of charges against juvenile would be filed in district court. One of the major components of the bill would take away a district attorney’s ability to direct file on a juvenile between the ages of 14 and 16. The bill is next scheduled on the House calendar for 3rd and Final Reading on Monday, March 10.
BILLS OF INTEREST (and status):
In the House
HB 1351 - Concerning preservation of DNA evidence in criminal cases involving newly committed criminal offenses. By Rep. Jahn and Sen. Kopp. Requires the preservation of DNA evidence collected during the investigation of a crime. Directs how long the evidence must be preserved based on the nature of the offense. Creates a process whereby the period that evidence must be preserved may be shortened or lengthened.
Allows the executive director of the department of public safety to call together a working group to discuss DNA retention issues, and specifies the membership of the working group. Requires new peace officer cadets to receive training at the training academy on proper DNA evidence collection and preservation. Permits the peace officer standards and training board to develop a specialized certification program for evidence collection and retention. Assigned to the Judiciary Committee.
HB 1352 - Concerning provisions to limit the state board of parole's option of placing a parolee in a community return-to-custody facility to only those parolees who at the time of revocation are not subject to the criminal justice system based on the commission of a new offense. By Rep. Stephens and Sen. Morse. Limits the parole board's option of placing a parolee in a community return-to-custody facility after revocation to a parolee whose parole is revoked based on a technical violation, who has no active felony warrant, felony detainer, or pending felony criminal charge, and who was on parole for an offense that was a class 5 or class 6 nonviolent felony other than menacing or unlawful sexual behavior. Assigned to the Judiciary Committee.
HB 1353 - Concerning the implementation of additional requirements to verify the validity of a state income tax credit claimed by a taxpayer for donating a conservation easement in the state. By Rep. Madden and Sen. Isgar. Requires that an appraiser who conducts an appraisal of a conservation easement submit a copy of the appraisal to the division of real estate (division) rather than the department of agriculture and the department of natural resources. Requires the appraisal to be submitted within a specified time with an affidavit containing specified information relating to the appraisal, the appraiser, and the easement being appraised. Authorizes the board of real estate appraisers (board) to investigate the activities of any appraiser who submits an appraisal, and requires the board to conduct the investigation upon receiving a written complaint from any person. If the board determines that a material violation has occurred, requires the board to notify the Department of Revenue (DOR).
Requires the division to maintain the information in an electronic database. Authorizes the division to share the information with the DOR. Specifies that the division shall deny an open records request to inspect the information until such time as the division files a notice of charges related to the information. Allows the division to require the correction of an appraisal in specified circumstances and to notify the DOR regarding the appraisal.
Provides the board with the authority to take disciplinary action against appraisers who do not meet specified requirements relating to appraisals of conservation easements. Authorizes the board to establish classroom education and experience requirements for an appraiser who prepares an appraisal for a conservation easement for which a tax credit is claimed. Creates a fee to be charged for each appraisal submitted to the division to provide for the costs of administering the additional requirements.
Creates the conservation easement oversight commission (commission). Specifies the membership of the commission and the terms of certain members of the commission. Requires the commission to establish a conflict of interest policy for members of the commission. Requires the commission to review conservation easement transactions at the request of the division and to advise the division and the DOR regarding conservation easement transactions for which a tax credit is claimed.
Requires the division to establish and administer a certification program for organizations that hold conservation easements for which tax credits are claimed. Requires the commission to review each application for certification and provide a recommendation for approval to the division. Specifies criteria for granting certification. Requires applicants to pay a fee to provide for the costs of the certification program.
Authorizes the program to contain a provision allowing for the expedited or automatic certification of certain entities. Requires the division to notify the applicants of the division's decision on certification. Allows the division to implement the certification program for land trusts during the first year of the program and for other entities in the 2nd year of the program. Allows future tax credits for conservation easements to be claimed only if the entity that holds the easement has been certified by the program. Provides that the certification shall be effective for a specified time. Allows the division to revoke or suspend a certification upon making specified findings. Requires the division to maintain and update an online list of the status of entities that participate in the program. Creates an exception from an existing requirement that the holder of a conservation easement have adequate resources to monitor its easements if the easement was granted to a local government that did not involve a charitable donation.
Specifies additional authority and responsibilities of the executive director of the DOR with respect to administering the allowance of tax credits for conservation easements. Authorizes the executive director to require such detailed information regarding a claim for a conservation easement credit as the executive director determines is necessary to carry out the DOR's functions relating to the credit. Excepts the executive director from having to comply with an open records request to inspect information related to a credit.
Modifies existing provisions that allow the executive director of the DOR to require a 2nd appraisal for a conservation easement. Extends the internal revenue code's tax basis limitation on qualified conservation contributions over property held for less than one year to state conservation tax credits. Assigned to the Finance Committee.
HB 1356 - Concerning landlord and tenant relations. By Rep. Merrifield and Sen. Tupa. Prohibits a residential landlord or tenant who prevails in a forcible entry and detainer action from recovering attorney fees, unless the residential rental agreement contains a provision for either party to obtain attorney fees.
Creates a warranty of habitability in every rental agreement for a residential premises. Establishes that the warranty is breached if:
· A residential premises is uninhabitable or unfit for the uses reasonably intended by the parties;
· The residential premises is in a condition that is materially dangerous or hazardous to the tenant's life, health, or safety; and
· The landlord has received notice of such condition described and failed to cure the problem within a reasonable time.
Establishes the notice a landlord must receive. Prohibits misconduct by a tenant or a person under the tenant's control from constituting a breach of the warranty. Establishes that a residential premises is considered uninhabitable when it substantially lacks specified characteristics. Prohibits a deficiency in a common area from rendering a residential premises uninhabitable, unless it materially and substantially limits the tenant's use of his or her dwelling unit. Permits a tenant in certain circumstances to assume responsibility for one or more of these characteristics.
Imposes upon every tenant of a residential premises a duty to use that portion of the premises within the tenant's control in a reasonably clean and safe manner. Establishes what constitutes a failure to keep a premises in a reasonably clean and safe manner. Prohibits a tenant from knowingly, intentionally, deliberately, or negligently destroying, defacing, damaging, impairing, or removing any part of a dwelling unit or knowingly permitting any person within their control to do so.
Establishes a tenant's remedies for a breach of the warranty of habitability, which remedies include self-help, termination of the rental agreement, injunctive relief, and damages. Establishes who may allege the breach, when the breach may be used as a defense, requirements for using the breach as a defense to a claim for possession, and defenses to the allegation of a breach. Requires certain information related to the use of a breach of warranty of habitability as a defense to a claim for possession to be included in the summons for a forcible entry and detainer action.
Prohibits a landlord from retaliating against a tenant who proves a breach of the warranty of habitability. Prohibits a landlord from removing or excluding a tenant from a residential premises without resorting to court process, with specified exceptions. Establishes that, if a landlord willfully and unlawfully removes the tenant from the premises or willfully and unlawfully causes the termination of heat, running water, hot water, electric, gas, or other essential services, the tenant may seek any remedy available under the act or any other law.
Makes legislative findings and declarations that the provisions of the act are a matter of statewide concern. Establishes the underlying purposes and policies of the act. Assigned to the Business Affairs and Labor Committee.
In the Senate
SB 195 - Concerning classifying certain sexual assaults on a child as a class 1 felony, and making an appropriation in connection therewith. By Sen. Ward and Rep Rice. Makes sexual assault on a child who is 12 years of age or younger a class 1 felony under certain circumstances. Makes a 5-year statutory appropriation. Assigned to the Judiciary Committee; committee meeting scheduled on Monday, March 10 at 1:30 p.m.
SB 197 - Concerning provisions to strengthen the criminal laws of the state, and making an appropriation in connection therewith. By Sen. Bacon and Rep. T. Carroll. Prohibits the reproduction of sexually exploitative material in the course of a criminal case.
Requires each person convicted of a misdemeanor or petty offense who is to be considered for probation or a deferred judgment and sentence to submit to an alcohol and drug use assessment. Permits the court to require drug or alcohol counseling in a deferred judgment and sentence and requires the treatment to be by an approved provider if the defendant receives a deferred judgment and sentence for an unlawful sexual behavior offense.
Includes in the crime of identity theft, using or possessing the personal identifying information of another to deceive a peace officer. Creates the crime of criminal possession of identification documents that prohibits the possession or control of the drivers' licenses, government-issued identification cards, or passports of 2 or more people without permission or lawful authority. Includes criminal possession of identification documents as a predicate racketeering offense.
Includes in the crime of violation of a protection order, violating a protection order after acquiring from law enforcement personnel knowledge of the contents of the protection order.
Includes in the crime of public indecency, an act of public masturbation.
Makes any material, compound, or mixture containing N-benzylpiperazine (BZP) a schedule I controlled substance.
Clarifies that, when an offender is ordered as a part of a sentence to probation to attend domestic violence counseling, the program shall be certified by the domestic violence offender management board. Makes a 5-year statutory appropriation. Assigned to the Judiciary Committee.
SB 200 - Concerning the expansion of prohibitions against discrimination. By Sen. Veiga and Rep. Judd. For purposes of membership on the Colorado civil rights commission by persons who are members of groups who have been or might be discriminated against, allows for the appointment of persons who have been or might be discriminated against because of sexual orientation. Prohibits discrimination on the basis of sexual orientation in the following areas:
· Housing practices;
· Places of public accommodation;
· Publication of discriminative matter;
· Consumer credit transactions;
· Membership in labor organizations;
· Inclusion in public works projects;
· Issuance of license to practice law;
· Sales of cemetery plots;
· Determination of whether expenses paid at or to a club that has a policy to restrict membership are tax deductible;
· The provision of funeral services;
· Enrollment or classification of students at private occupational schools;
· Eligibility for jury service;
· Enrollment in a charter school, institute charter school, public school, or pilot school for expelled students;
· Written local school boards of education policies regarding employment, promotion, and dismissal;
· The assignment or transfer of a public school teacher;
· Leasing portions of the grounds of or improvements on the grounds of the Colorado state university - Pueblo and the Colorado school of mines;
· Employment in state personnel system;
· The provision of adequate hospital facilities;
· Availability of family planning services;
· Employment practices of county departments of social services involving selection, retention, and promotion of employees;
· Participation in the managed care program under the children’s basic health plan;
· Making or committing to make a housing facility loan by the Colorado housing and finance authority; and
· Imposition of a discriminatory occupancy requirement on charitable property for which the owner is claiming an exemption from property taxes based on the charitable use of the property.
Adds prohibitions against discriminating on the basis of sex, marital status, disability, age, national origin, ancestry, and religion, as necessary, for consistency in antidiscrimination laws. Assigned to the Business Labor and Technology Committee.
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